Sunday, September 26, 2021

If Even the Lochner Court....

The West Virginia Attorney General has issued an opinion decrying the legality of vaccine mandates, vaccine passports, or basically anything that would keep West Virginians alive during a pandemic.

At one level, it is a sterling example of the GOP's descent into the death cult: targeting not just state vaccine mandates, but also any decision by private businesses to require vaccines (whether of employees or customers). Any of these, we're told, violates state law, the state constitution, federal law, the federal constitution, and one has to presume natural law and probably the mythical HIPPA as well.

But that's not what I caught my eye. In the midst of the "throw everything at the problem" analysis, there was this attempt to indict Jacobson v. Massachusetts, the 1905 case where the Supreme Court famously upheld Massachusetts' vaccine mandate. On that note, the Attorney General writes:

Decided the same year as the now-repudiated decision in Lochner v. New York (1905), the case seems out of step with our country's present understanding of the Bill of Rights.

What is the cite to Lochner doing there? While it is nice that Lochner remains anti-precedent even on the right, the reason Lochner is a constitutional dirty word is that it marks the apogee of the Supreme Court exercising minute oversight over state health and safety regulations in order to ensure they "comply" with the Court's own political philosophy of "freedom of contract". The Lochner-era Court upholding a state health law in the face of a "liberty" challenge is like a Jim Crow Court deciding that a form of interrogation is too brutal to use on a Black murder defendant: if the argument is too much for them, then there really is no saving it. That Jacobson, even in the Lochner era where the Court was happy to strike down any "liberty" infringement at the barest glance, nevertheless upheld the vaccine mandate, shows how robust that decision is.

What is true that Jacobson predates the line of cases that firmly entrenched a personal liberty interest in matters of "bodily autonomy". You may have heard of these cases -- Roe and Casey are the two most prominent, and dollars to donuts West Virginia is trying its mightiest to see them overturned. But as much as folks might love the "my body my choice" gotcha, those cases do not extend to some general right to infinite medical choice (see Washington v. Glucksburg). The fact is that vaccine mandates -- and certainly the ability of private businesses to choose them if they want -- are well-entrenched in American law. And let's be clear -- the assault we're seeing on them from red states can't cabin itself to COVID. It threatens vaccination regimes for measles and mumps and all the other diseases that we've made great strides in eradicating because we've had (survey says!) a vaccine mandate for schoolchildren for decades now.

Just as the Constitution does not enact Mr. Herbert Spencer's Social Statics, it also doesn't enact compulsory enrollment in the GOP's death cult. Or so seems obvious. But, to quote the head of an ex-President:

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